Cody Mallette: Courts must not rewrite notwithstanding clause


That bargain is now under pressure from several directions at once. So runs the testimony of the people who made the Charter. Chrétien himself, introducing the final amendments to the House of Commons on Nov. 20, 1981, defended Section 33 not as a necessary evil, but as a principled feature of the constitutional design. It would serve, he told Parliament, as a “safety valve” to ensure that legislatures, and not just courts, would have a meaningful role in defining the content and boundaries of rights. Peter Lougheed, the Progressive Conservative Premier of Alberta who first proposed the override mechanism, stated the bargain plainly: Trudeau got his Charter of Rights, and the provinces got both the amending formula and the notwithstanding clause. That was the deal. Manitoba has introduced legislation that would automatically refer any provincial bill invoking Section 33 to its court of appeal for an advisory opinion. At the federal level, the justice minister has signalled that similar measures are under active investigation.



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